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o F I Ni o ]sr 






AS TO THE CONSTRUCTION OF 



THE NON-INTERCOURSE ACTS 




CAPTURED PROPERTY ACTS 



UKLATIVELY TO 



THE PRIZE ACTS 



WASHINGTON: 

1866. 






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o p I isr I o N 



AS TO THE CONSTRUCTIOISi OF 



THE NON-INTERCOURSE ACTS 



CAPTURED PROPERTY ACTS 



RELATIVELY TO 



THE PRIZE ACTS 



WASHINGTON: 

. 1866. 






NOV 23 mh 



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^ OFiisrioN^. 



Washington, April 11, 1866. 

Sir: The following observations on the construction and legal effect of 
the act of July 13, 1861, ch. 3, entitled "An act further to provide for 
the collection of duties on imports, and for other purposes," and especially 
sections 4, 5, 6, 7, 8, and 9 of that act, and on the act of May 20, 1862, ch. 
81, supplementary to the foregoing, are respectfully submitted, not as 
argument on this or that side of any question, but in the sense prescribed 
to me by your instructions, to wit, as impartial opinion, to aid, so far as 
such opinion may contribute to this end, in the practical solution of the 
doubts arising in the administrative construction of those acts. 

Permit me prefatorily to say that the Government of the United 
States, meaning thereby the Legislative as well as the Executive Powers, 
would seem, at the time of these enactments, not fully to have deter- 
mined for itself how far its relation to the people and territory of the 
United States, wherein opposition to the laws was either flagrant or im- 
pending, should continue to be conducted within the limits of municipal 
sovereignty, and how far that relation was to fall into the domain of the 
jus belli. 

The President's proclamation of April 18, 1861, did but call out militia, 
to withstand insurrectionary combinations too powerful to be suppressed 
by the ordinary course of judicial proceedings, in the States of South 
Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas. 

The proclamation of May 3, 1861, calls out a volunteer force for the 
same objects, and with the same inducements. 

To be sure, the intermediate proclamations of April 19 and April 27 
propose "to set on foot a blockade" of the ports within the above-men- 
tioned States, and those of Virginia and ISTorth Carolina ; but these pro- 
clamations are founded in part on the fact, that "the laws of the United 
States for the collection of the revenue cannot be effectually executed 



therein, conformably to that portion of the Constitution, which requires 
duties to be uniform throughout the United States;" these proclamations 
profess only to provide provisionally for the interval j)i"eceding the 
assembly of Congress; and the clause v^hich they contain declaring 
that vessels, approaching or attempting to leave either of the occluded 
ports, shall be warned specially, and have their papers endorsed, and 
captured only in case of thereafter again attempting to enter or leave 
such ports, and which form of special notice the law of war does not re- 
quire, would seem to indicate that the President had in his mind the idea 
of a pacific, rather than a belligerent, blockade of the coasts of the dis- 
turbed parts of the United States. 

This impression is confirmed by the consideration that, in his message 
to Congress, when it assembled, the President spoke of what had been 
done as being " proceedings in the nature of a blockade." 

The thought of a non-belligerent blockade might well have presented 
itself to the mind of the President, seeing that, in recognized authorities 
of the law of nations, it is laid down that neither embargo nor blockade 
necessarily constitutes a state of regular war; that these often precede 
the opening of hostilities, and have at start for object only provisional 
seizure, and may or may not assume the definitive character of war 
according to the progress of events; that modern history furnishes not 
a few examples of such pacific blockades, excluding of course belligerent 
capture and prize of war, and intending only municipal confiscation. 
(See Heffter, Droit International public de I'Europe, ed. 1857, p. 220, 232.) 
Correspondent with this thought would have been the strenuous de- 
nial on our part, which pervades the diplomatic correspondence of the 
Government, of the existence, at the time, of such a state of belligerency, 
between the United States and the insurgents, as justified the recogni- 
tion of them as belligerents by foreign Powers ; and the numerous acts 
of Congress, asserting and regulating the continued exercise, notwith- 
standing the current hostilities, of municipal sovereignty of the Govern- 
ment throughout the United States. 

The disclosures of time will probably show that less forceful and 
more beneficent purposes of the President in this respect were thwarted 
by unwise and unseasonable intimations from the ministers of foreign 
Powers. 



The adjudication of the Supreme Court of the United States in the 
" Prize Cases," so called, (2 Blach, 635,) determined that the blockade was 
a blockade jure belli, as against neutrals, and in certain cases as against 
citizens; but, say the Court, "it is a proposition never doubted, that the 
belligerent party, who claims to be sovereign, may exercise both bellig- 
erent and sovereign rights." — Ibid, p. 673, referring to Hose v. Himely, 
4 Cranch, 272. 

Hence, in the light of all subsequent knowledge and matured expe- 
rience, as well as in that of the imperfect, and, as it were, formative con- 
ceptions of the actual time, we see that, war or no war, the enactments 
of July 13, 1861, and May 20, 1862, were made in the full and justifiable 
assertion of the permanency and completeness of the municipal sove- 
reignty of the United States. 

And thus we approach the two acts, justly assuming tliat, at the 
time of their enactment, and afterwards, first, the Government might 
rightfully do, as respects all pro^^erty within the insurgent States, what- 
soever it belongs to sovereign power to do ; and, secondly, that by these 
acts, and those in addition of August 6, 1861, July 17, 1862, March 12, 
1863, and July 2, 1864, the Government did rightfully do whatsoever in 
its supreme discretion as a sovereign power it saw fit to do. Whether 
or no the law of nations imposes any quahfication in this respect, we 
shall have occasion to consider in the sequel. 

I observe only in this latter relation, now, that a sovereign, engaged 
in suppressing hostilities on the part of insurgent subjects, possesses 
larger powers than a sovereign engaged in hostilities against another 
sovereign; for the latter exercises only the powers belonging to the jus 
belli, while the former superadds thereto the powers belonging to the jus 
majestatis. — Hose v. Himely, 4 Cranch, 241 ; Hudson v. Gicestier, 4 Cranch, 
293 ; Cherriot v. Foussat, 3 Binney, 252 ; 1 East's P. C, 104 ; Rycui's case, 
2 Woodeson, 427, note a; Malleck's International Laio, p. 344; Upton's 
Maritime War, 212 ; The Revere, 24 Law Rep., 276 ; The Amy Warwick, 
24 Laio Rep., 344; Smith's Trial, 96; The Savannah, 368; Ayala, De Jure 
' et Officiis Bellicis, ch. 2. 

We are now prepared to consider what Congress purports to have 
enacted by these acts. 



The act of July 13, 18G1, is, according to its title, to provide for the 
collection of duties on imports, and for other puri)oses, and is throughout 
in general terms applicable to all time, and not merely to the existing 
disturbances in certain of the United States. 

Sections 1, 2, and 3 enact that if, by reason of unlawful combinations, 
the revenue laws ■ cannot be executed at any statute port of entry, the 
President may transfer the collection to any port of delivery in the same 
collection district ; which provisions require no further remark here than 
that their municipal character is evinced by their similitude to the enact- 
ments provided for the familiar case of the old nullification controversy 
in South Carolina. ' (Compare act of March 2, 1833, ch. 57.) 

In the present act, section 4 enacts that any such ports of entry may 
be declared closed by proclamation of the President, and if, while said 
ports are So closed, any ship or vessel from beyond the United States, or 
having on board any articles subject to duties, shall enter or attempt to 
enter any such port, the same, together with its tackle, apparel, furni- 
ture, and cargo, shall be forfeited to the United States. Here we have 
the full assertion of a purely municipal occlusion of ports, applicable to 
the case of a closed pox-t, in the possession of the United States, notwith- 
standing the contemporaneous fact of insurrection flagrant, and of the 
Federal laws maintained by Federal armed force organized as for war. 

Section 5 enacts the conditions of fact on which the President may jDro- 

claim the inhabitants of a State, or any part thereof, to be in a state of 

insurrection against the United States, and then proceeds to enact that, 

after such proclamation regarding such state — 

" Thereupon all commercial intercourse by and between the same, and 
the citizens thereof, and the citizens of the rest of the United States, shall 
cease and be unlawful so long as such condition of hostilities shall con- 
tinue; and all goods and chattels, wares and merchandise, coming from 
said State or section, into the other parts of the United States, and all 
proceeding to such State or section by land or water, shall, together with 
the vessel or vehicle conveying the same, or conveying persons to or from 
such State or section, be forfeited to the United States." 

Here the language is definite, explicit, and clear as to the case and 
subject of forfeiture, to wit, illegality of any commercial intercourse be- 
tween the citizens of the insurgent States and those of the rest of the 
United States (without special permission of the Government,) and con- 
sequent forfeiture of all vehicles and goods in transitu by land or water 



between the so-discriminated parts of the United States. It is in terms 
municipal forfeiture, not prize of war. 

And it is presumable that, considering the scope and spirit of the whole 
act, such property in transitu would be forfeitable, although belonging to 
a person not technically a "citizen," but commercially domiciled in the 
insurgent States. — See authorities collected in Laurent's Case, U. S. and 
Ci. B. Claims Commission, p. 120. 

The proclamation contemplated by the enactments of this section was 
duly issued by the President, August 16, 1861, and gave initiatory effect 
to the acts. — U. S. JLaivs, vol. 12, p. 1262. 

Section 6 enacts that " from and after fifteen days after the issuing of 
such proclamation, as provided in the last foregoing section of this act, 
any ship or vessel belonging in whole or in part to any citizen or inhabi- 
tant of said State or part of a State, whose inhabitants are so declared in 
a state of insurrection, found at sea, or in any port of the rest of the 
United States, shall be forfeited to the United States." 

Here question arises : Do or not the words of the sixth section involve 
inquiry of the destination of the vessel? Does the cargo, as well as the 
vessel, become forfeited ? Are the conditions of the case to be the same 
as those of the preceding section? 

Looking at the letter of this section, it would seem that, by it, Con- 
gress intended to comprehend not only any ship or vessel of such own- 
ership, in ports of the United States, regardless of any proposed voyage, 
or at sea, whithersoever bound. But, as to the latter case, of ships at sea, 
it might be the safer construction to comprehend them only when in 
form or in true purpose destined to some port of the United States. 

However this may be, yet the cargo of such ship or vessel, or any part 
thereof, having the same ownership, would, although not expressed, likewise 
be comprehended by construction. For it is difficult to see why, as rebel 
property, the vessel should be forfeited for undertaking an unlawful voy- 
age, and not her contents, for the same unlawftil voyage. General rules of 
law would make both subject to the same fate, where the inducements are 
the same, and under the same circumstances. 

Nothing occurs to the contrary of this, except a decision of the Suj^reme 
Coiirt on the Embargo Acts, (act of April 25, 1808, ch. 66, s. 14, 2 U. S. 
Laws, 501,) to the effect that the detention of a vessel authorized by that 



8 

act does not require the detention of the cargo, if it be separable from 
the vessel, and it be the will of the owner to make the separation, (Slocum 
V. Mayberry, 8 Cranch, 1 ;) because, the object of the law being to prevent 
the prohibited voyage, this object did not require detention of the goods. 
The voyage was broken up effectually by the detention of the vessel : 
hence the cargo might well be surrendered to the custody of the owner. 
For, say the Court, "The cargoes thus arrested and detained were gener- 
ally of a perishable nature, and it would have been wanton oppression to 
expose them to loss by unlimited detention, in a case where the owner 
was willing to remove all danger of exportation," (p. 11.) 'No such con- 
siderations apply to the case of rebel property confiscable as such. And 
the cargo, equally with the ship, is forfeited by the Non-intercourse Acts 
of the early history of the Government. 

Certain it is, meanwhile, that, as to cases of municipal forfeiture, it lies 
in the discretion of Congress to jironounce forfeiture, either of the vessel 
alone, or of the cargo alone, or of both together; and therefore the ques- 
tion is one stricti juris, on the construction of statutes. But there is at 
least plausible cause to think that the intention here was to forfeit cargo 
as well as vessel. 

And hence, at any rate, although the true meaning of this section be 
not so perfectly limpid as that of the fifth section, still it is prudent and 
safe to say, that the construction here suggested is one, which, in the 
ordinary course of justice, counsel would regard as of sufiicient gravity 
and apparent force to warrant suspension of opinion and action until it 
could be submitted to the determination of the proper courts of law. 

That a municipal seizure of property, belonging to a citizen or subject, 
(and in certain cases even foreign property,) may be made on the high 
seas, is indubitable. — JjCI Jeune Eugenie, 2 Mason, 409, 413. 

Section 7 enacts that "in the execution of this act, and of the other 
laws of the United States providing for the collection of duties on im- 
ports and tonnage, it may and shall be lawful for the President, in addi- 
tion to the revenue cutters in service, to employ in aid thereof such other 
suitable vessels as may, in his judgment, be required." 

Section 8 enacts that " the forfeitures and penalties incurred by virtue 
of this'?ict may be mitigated or remitted in pursuance of the authority 
vested in the Secretary of the Treasury by the act entitled ' An act pro- 



9 

viding for mitigating or remitting the forfeitures, penalties, and disabili- 
ties accruing in certain cases therein mentioned, approved March 3, 
1797,' or, in cases where sj)ecial circumstances seem to require it, accord- 
ing to regulations to be prescribed by the Secretary of the Treasury." 

This enactment, it is manifest, confers on the Secretary not merely the 
power he had in similar matters by previous laws, (Comp. Acts of March 
3, 1797, and of February 11, 1800,) bat also large additional powers. 
According to the former acts, he could remit only on the report of the 
district judge, before whom the case might be pending, and on the facts 
reported by such judge, (The Margaj-etta, 2 Gallison, 515.) According 
to the present act, he may, when special circumstances se^m to him to 
requii'e it, proceed without judicial report, and in pursuance of regulations 
of the Treasury Department. 

In either case, conformably with established rules of law, the Secre- 
tary's power to remit applies at any time before or after final condemna- 
tion until the proceeds shall have been actually distributed, and such 
remission extends to shares of the proceeds accruing to individuals, as 
well as to the interest of the United States. — United States v. Morris, 10 
Wheaton, 246 ; McLane v. United States, 6 Peters, 404. 

Section 9 enacts that proceedings on seizures for forfeitures under the 
act may be prosecuted in the Courts of the United States in any district 
iuto which the property so seized may be taken, (or in which it may be 
seized.) 

So much as to the tenor of the act of July 13, 1861. 

The proclamation of the President construes and executes all the pro- 
visions of the act, in the following words, namely : 

" I hereby enjoin all marshals and ofiicers of the revenue and of the 
military and naval forces of the United States, to be vigilant in the 
enforcement of the said act, and in the enforcement of the penalties and 
foi'feitures imposed or declared by it, leaving any party who may think 
himself aggrieved thereby to his application to the Secretary of the 
Treasury for the remission of any penalty or forfeiture, which the said 
Secretary is authorized by law to grant, if, in his judgment, the special 
circumstances of any case shall require such remission." — U. S. Statutes, 
vol. 12,^. 1262. 

Here we see that the officers of the ISTavy, and of the Army, as well 

as of the Treasury, are to aid in making the seizures contemplated by 

the act, although such seizures are purely municipal, and that all persons 

2 



10 

aggrieved thereby arc to present their grievances to the Secretary of the 
Treasury. 

Next in order of relation comes the siipplementary act of May 20, 
1862, which empowers the Secretary of the Treasury to grant or to 
refuse clearance to any vessel or other vehicle laden with goods, wares, 
or merchandise, destined to a foreign or domestic port, whenever he shall 
have satisfactory reason to believe that such goods, wares, or merchan- 
dise, or any part thereof, whatever may be their ostensible destination, 
are intended for ports or places in possession or under control of insur- 
gents against the United States; and any vessel or vehicle so departing, 
or attempting to depart, without such clearance, is, with her tackle, ap- 
parel, furniture, and cargo, forfeited to the United States. • 

The same act empowers the Secretary of the Treasury to prohibit and 
prevent the transportation, in any vessel, or upon any railroad, turnj)ike, 
or other means of transportation in the United States, of any goods, 
wares, and merchandise, of whatever character, and whatever may be 
the ostensible destination of the same, in all cases where there shall be 
satisfactory reason to believe that such goods, wares, or merchandise are 
intended for any place in the possession or under the control of insur- 
gents against the United States; and any goods, wares, or merchandise 
transported, or attempted to be transported, in violation of this provision 
shall be forfeited to the United States. 

Section 4 enacts that proceedings for the penalties and forfeitures 
accruing under this act, and for the mitigation and remission of the same, 
shall conform to the provisions of the act of July 13, 1861, to which this 
act is supplementary. 

Finally, section 5 enacts that " the proceeds of all penalties and forfeit- 
ures, incurred under this act, or the act to which this is supplementary, shall 
be distributed in the manner provided by the 91st section of the act of 
March 2, 1799, entitled 'An act to regulate the collection of duties on 
imports and tonnage.' " 

This act is important, not merely because it adds to the scope of for- 
feitures, but for the greater reason that it makes express grant of a share 
of the forfeitures, accruing as well under the act itself as under that of 
July 13, 1861, as for revenue seizure, thus suj^plying a deficiency in that 
act, and rendering still more positive and clear the purpose of Congress 



11 

to enact a foi-feiture, not as condemnation jure belli, but by municipal 
right, for the use of the Treasury and the seizing officers of the Treasury. 

JSTow, pausing at this stage of the investigation, and reverting to the 
single inquiry, — what is the true meaning of the two cognate acts of July 
13, 1861, and May 20, 1862? — it would seem rightful to assume, as a thing 
beyond peradventure or doubt, that these acts, in express terms, inten- 
tion, and spirit, do enact mere municipal forfeitures, subject to the admin- 
istration of the Secretary of the Treasury. 

In justification of the assumption of the Government to retain and ex- 
ercise complete municipal sovereignty over insurgents against the United 
States, general authorities were cited at the commencement of this Opin- 
ion. Confirmation of the doctrine, as applied specially to the two acts of 
Congress before us, occurs in a judicial opinion entitled to deference, that 
of Judge Treat, of the District of Missouri, in the case of the United 
States V. Barrels of Cement, (3 American Law Register, N. S., 735, 747.) 
His words are as follows : 

" Considering the statute (of July 13, 1861) as the exercise of muni- 
cipal or intra-territorial sovereignty, prohibiting certain commercial 
operations, the claimants, no matter where residing within the territorial 
jurisdiction of the United States, were bound thereby, irrespective of 
State citizenship or residence. All citizens, loyal or disloyal, are alike 
subject to the law. Hence a decision of the question as to such citizen- 
ship or residence on the one hand, or as to the loyalty or disloyalty of 
claimants on the other, is not necessary in this case. The analogies 
drawn from the laws of war, as laid down by publicists, may assist in 
solving the constitutional questions which arise concerning the power of 
the Federal Government in suj)pressing insurrections, and may also aid 
in the interpretation of the statutes passed concerning such a condition 
of hostilities ; but the case before the Court is not one to be decided by 
international law, but by municipal statutes. The .voyage was not be- 
tween this and a foreign country during a foreign war, does not affect 
any supposed neutral right, and necessarily involves, therefore, no doc- 
ti-ine of international law, regulating warlike operations between foreign 
belligerents. The questions are intra-territorial entirely, and relate solely 
to the powers and duties of the Federal Government, intra-territorially, 
under the Constitution. * * * * fpi^e position of foreign nations 
with respect to this insurrection, it must be remembered, does not deter- 
mine its status in American courts. The latter follow exclusively the 
decision of the political department of the United States Government on 
that question. Even if other nations had recognized the so-called Con- 
federate Government as an independent Power, their recognition would 
bind themselves and their subjects alone, not the United States, Those 
foreign nations which have recognized a state of belligerency, and as- 
sumed the position of neutrals, estop their subjects from disputing the 
lawfulness of captures on the high seas, according to the laws of mari- 



12 

time warfare. The ships and cargoes of their subjects are to be judged 
accordingly. But rebel property thus captured is amenable to municipal 
authority. All American courts are bound to treat the insurrectionary 
States as integral parts of the Union, and subject to its Constitution and 
laws. In the adjudication of all such questions arising here, the United 
States statutes would furnish the rules of decision. In other Avords, as 
to all foreign nations, the United States Government is absolutely sov- 
ereign Avithin its own territorial limits, and over its own subjects. Its 
internal constitution is a subject Avith Avhich foreign PoAvers have no right 
to intermeddle. The equality and independence of nations could not 
otherwise exist." 

The same learned Judge, in another case, that of the United States 
against Certain Packages, (2 American Laio Megister, N. S., 419,) makes 
the folloAving observations : 

" The act of July 13, 1861, is a municipal and revenue statute. 

" Waiving all discussions of the constitutional question, (which is purely 
municipal or intra-territorial,) and looking only to the international laAA'S 
of blockade, neutrals cannot sail on a voyage Avith the intent to enter a 
blockaded port Avithout becoming lawful prize under the laAv of nations. 
A citizen of the United States subject to the municipal laAA'' may be for- 
bidden by that laAV to do what a neutral would haA-e a right to do on the 
high seas. A neutral, for instance, may laAvfully enter any unblockaded 
port of the adverse belligerent Avith a cargo not contraband, and depart 
therefrom. But if an American citizen (the United States being the other 
belligerent) should attempt to do so, the United States might subject him 
to severe penalties personally, and confiscate his vessel and cargo, if thus 
found ' adherent to the enemy,' as Avas done by the act of July 6, 1812. 
He is subject both to the laAv of nations and to the municipal laAv of his 
OAvn domicil." 

Further reference, in support of the same opinion, may be made to the 
cases of the United States v. The Steamboat Hannibal, and of the United 
States V. The Champion, (2 American Law Register, N. S., 421.) 

If there were nothing else to affect the question, Ave might Avell stop 
here, and conclude that, in virtue of the provisions of the act of July 13, 
1861, and of May 20, 1862, the jurisdiction of the Secretary of the Treas- 
ury is complete, in regard to all the cases comprehended within the pur- 
view of those acts. 

ISTor could any question be raised in this respect, but for the fact, that, 
on seizures made in cases Avhere the subject-matter and the circumstances 
Avere such as those acts define, proceedings have been instituted and con- 
demnations had on the prize side of the admiralty courts as for captures 
jure belli, instead of on the instance side as for seizures by municipal 
authority; and that, in consequence of this, the proceeds are noAV claimed 



13 

for distribution as prize money, lialf to the captors, and half to the pen- 
sion fund of the l!^avy. 

Hence the ultimate question may be one of conflict of law between 
revenue acts and prize acts. 

At the time when most of the takings and of the proceedings for con- 
demnation occurred, the question of prize stood on old acts, namely, that 
of April 23, 1800, and its supplements, especially those of January 22, 
1813, April 26, 1816, and March 3, 1849, together with certain amenda- 
tory provisions in the more recent acts of March 25, 1862, July 17, 1862, 
and March 3, 1863, in so far as regards the provisional custody of prize 
money and its ultimate distribution. All these acts are now superseded 
by the later act of June 30, 1861, which constitutes the existing statute 
prize law of the United States. 

Although the late acts, including that now in force, are all subsequent 
in date to the revenue act of July 13, 1861, and most of them to that of 
May 20, 1862, yet, in view of the tenor of the pre-existing acts, that fact 
is not decisive as to any matter of present consideration. 

Still the circumstance has some weight. These forfeitures were ex- 
pressly granted to the Treasury and its officers by the Eevenue Acts of 
July 13, 1861, and May 20, 1862 ; and what good reason is there to pre- 
tend that the grants were revoked by mere implication of subsequent 
Prize Acts, and this, in many cases, even after the forfeitures had actually 
in right or fact accrued to the Treasury ? 

According to the Prize Acts, the proceeds of all captured property, ad- 
judged good prize, shall, when the vessels captured are of equal or supe- 
rior force to the vessels making the capture, be the sole property of the 
captors, and when of inferior force shall be divided equally betAveen the 
United States and the officers and men making the capture, in certain 
defined proportions ; and all prize money arising from captures made by 
the vessels of the Navy of the United States is, in the interval of time 
between the sale of the prizes and the final distribution of the question 
of prize in due form of law, deposited with proper officers of the Treas- 
ury.— TAe Porpoise, 2 Curtis, 0. G. B., 307. 

Now the critical question is, — Do the Prize Acts supersede the acts of 
municipal forfeiture? Is every provision of revenue law to be deemed 
and taken as absorbed and extinguished by prize law ? 



14 

The assumption that it is so is based upon the opinion of the Supreme 
Court in the case of " The Sally," (8 Cranch, 382,) which is to the effect: 
1. That, in pursuance of adjudications of the prize courts of Great Britain, 
property engaged in illegal intercourse with the enemy is deemed enemy 
property, and so must be condemned as prize to the captors, notwith- 
standing any antecedent municipal forfeiture ; 2. That the municipal 
forfeiture was absorbed in the more general operation of the laws of 
war ; 3. That " the property of an enemy seems hardly to be within the 
purview of mere municipal regulations, but is confiscable under the jus 
gentium;'' and, 4. That if the doctrine were otherwise, still the Prize 
Act " operates as a lawful grant of all property rightfully captured by 
commissioned privateers as prize of war." 

As to the first of these four propositions, to wit, that the property en- 
gaged in illegal intercourse with the enemy is to be deemed enemy proj)- 
erty, it is immaterial whether we deny that absolutely, or consider it as 
true, under certain conditions ; for it is but the assertion of a mere legal 
fiction, advanced for the purpose of subjecting different things to the 
same legal consequences by fictitious and artificial assimilation. 

As to the second proposition, to wit, that municipal forfeitures are ab- 
sorbed by the general operation of the laws of war, that again is not only 
a legal fiction, but a metaphorical form of words to disguise a thought, 
which, if expressed in simple language, would not be admitted by any 
save interested parties. It amounts to this : — No matter what disposition 
you, the Government, may, in the exercise of your sovereign power, ex- 
pressly make of property subject to municipal forfeiture, — whatever that 
may be, Ave, the prize courts, -undertake to defeat your sovereign and 
positive laws on this subject, by setting up against them the legal fiction 
of an all-devouring general operation of the laws of war, which means 
our own construction of rules of maritime prize wrought out by us in 
the interest of prize captors ! How can the prize courts rightfully assert 
any such power, in a purely domestic question, to overrule the statute 
law of their own Government? 

The third proposition, doubtingly enunciated by the Court, and in the 
form of a semble, not of a positive assertion of truth, is the groundwork 
of the decision. " iSemhle" [in effect say the Court] that the property of 
an enemy, being confiscable by the jus gentium, is hardly within the pur- 



15 

view of a mere municipal regulation. Perhaps -'yes,' and perhaps "no," 
as to the property of enemies in fact. Bat, in the matter before us, it 
is not the property of enemies in fact, but of Americans. And it is very 
debateable whether the decision has any application to cases like this ; 
because it must be admitted that insurgents are only enemies in a quali- 
fied sense, and by fiction, construction, artificial assimilation treated as 
identity ; since they do always continue subject de jure to the municipal 
sovereignty of the legitimate Government. 

Finally, as to the fourth proposition of the Court, — that is altogether 
fallacious. 

In virtue of what established rule of construction does the Court assert 
that a grant of prize forfeitures to prize captors annuls a grant of reve- 
nue forfeitures previously vested in the Treasury ? That is not apparent 
as general doctrine. Least of all is it apparent, if such were a general 
doctrine, how it would apply to the present matter, as to which not only 
does the statute vest the forfeiture in the Treasury, but the express ex- 
ecutive command of the President, as constitutional " Commander-in- 
Chief of the Army and IsTavy of the United States," plainly and peremp- 
torily orders all ofiicers, military, naval, and civil, to deal with the proj)- 
erty, described in these acts, not as prize, but as Treasury forfeitures, 
subject to remission by the Secretary. 

Why may not "the property of an enemy" be within the purview of 
mere municipal regulations, when the party is but a constructive or ficti- 
tious enemy, and is in fact and in truth a subject, and so amenable to the 
municipal law ? It seems, on the contrary, evidently just that the prop- 
erty of an enemy subject should, in certain conditions, be within the 
purview of mere municipal regulations. It is the peculiarity of the legal 
predicament of a rebel, 'as we have already seen, to be responsible both 
to the municipal law and the jus gentium. 

Neither in the opinion of the Court in the case of " The Sally," nor in 
the argument of counsel in the twin case of " The Eapid," (8 Crancli, 
154,) is the present contingency touched; although in " The Eapid" the 
Court does argumentatively consider and decide that property of a 
citizen of the United States may be prize of war to the United States. 

In "The Sally," the Court loosely and upon hasty presentation of some- 



16 

thing which in its opinion " hardly seems to be," comes to a conQjusion, 
certainly erroneous in its generality of "statement, and which as argu- 
ment stands upon the equally cursory statement of opinion attributed to 
the prize courts of Great Britain. 

While, in the early part of the present century, the political depart- 
ment of the American Government was engaged in steadily combatting 
the over-strained constructions of the laws of maritime war, set up by 
the courts and publicists of England, it is remarkable that not a few of 
the most exceptionable of those constructions were at the same time 
being transported one by one into our own jurisprudence by the judicial 
department of our Government, with a prevailing tendency to exaggerate 
the rights of prize, in the interest of captors, that is, of maritime depre- 
dation. One of the marked manifestations of that tendency is the pri- 
vateer decision in the case of "The Sally." 

It may be too late now to undo that which is ah^eady done in this re- 
spect; but the occasion is a good one to stop going on in that direction, 
and to begin to act on a wiser and better policy of our own, and ceasing, 
in a purely domestic question, to submit the rights of our own sovereignty 
to the imaginary pression of hostile or foreign prize law. 

The opinion of the Court, in the case of " The Sally," exhibits no in- 
trinsic claims to respect. It is the curtest possible, and furnishes very 
scanty and imperfect reasons for the decision. 

The Court half apologizes for this unsatisfactory brevity, by referring 
to the previous case of " The Eapid." But in that case no opinion what- 
ever is given on these points. 

"The Eapid" and "The Sally" were both war-captures, made during 
the late war between Great Britain and the United States. But for the 
occurrence of a foreign war, those vessels would have been confiscable 
under the Non-intercourse Acts, and they ceased to be so because of that 
war: which consideration may serve to sustain these two decisions, but 
fails to reach the present question. 

The English prize case of "The Nelly," (1 C. Eob., 219, note,) on 
on which our Supreme Court relied in the case of " The Sally," is quite 
as unsatisfactory as the latter ; and although it is pertinent to the latter 
case, because in "The Nelly," as well as "The Sally," the property was 



17, 

affected by foreign war, yet, morever^ a decision the other way, that of 
" The Etrusco," was very summarily cast aside by Sir Wilham Scott. 

If foreign prize law is to decide tne question, it is not easy to see why 
that of England should be accepted as conclusive, rather than the con- 
trary law of France and Spain, as cited in the case of " The JSTelly." 

The nearest analogous case to the present is that of " The Dickinson," 
(Becisions of Hay and Marriott, p. 1,) which was an incident of the 
American Eevolution. There the forfeiture did not go to the captors, 
but to the Lord High Admiral. 

In G-reat Britain, the Crown has power to limit the operation of hos- 
tilities, and to exempt from prize, generally or specially ( The JElsebe, 5 C, 
Bob. 173;) it may restore prize as against the interest of captors, (The 
St. Ivan, Edwards, 377;) it may at any time before distribution alter or 
revoke a grant of prize money, (Alexander v. I>uke of Wellington, 2 Russ. 
& M. 35;) and emergencies of public policy in particular cases suffice to 
divert condemnation from the captors, and award it to the Crown, (Ships 
taken at Genoa, 4 C. Bob. 388.) 

These considerations serve, at least, to show how unsafe it is to 
transfer to our admiralty jurisprudence some detached dictum of the 
English prize cases, as that in "The Nelly," without regard to the 
temperaments and qualifications attaching to English prize law by 
reason of its complex relations to the Crown, to the Lord High Admiral, 
and to the Exchequer. 

It IS much to be regretted, said a statesman of the last generation, 
speaking of the decisions of the time and temper of that of " The Sally," — 
it is much to be regretted that "so great a passion for prizes" * * * 
fascinated and seduced our courts, and contaminated our code with a 
"craving for condemnations." 

In fine, the decision itself in the case of "The Sally" is a debate- 
able one; and, if sound, stiU it does not, either in fact or in terms, cover 
the eases before us, and is not entitled to be regarded as dictating what 
decision shall be made of them. It is wide of the question before us. 

That question is a new one, and it is this: 

May not the United States, in the exercise of their sovereignty as such, 
determine what shall be done with property taken by the United States from 
Americans, legitimate subjects of the Uiited States? By what rule of right 
.3 



18 

or reason is it, that, in regard to the property of such Americans, prize 
law should assume to override municipal law? It is in the mere discre- 
tion of the Government whether it will or not allow any prize money to 
maritime captors, even in time of foreign war; just as it is in the dis- 
cretion of the sovereign to allow or not to allow booty to land captors 
in time of foreign war. All that, in the United States, stands absolutely 
upon statute law, enacted in virtue of the power given by the Constitu- 
tion to Congress to "make rules concerning captures on land and water." 

In the present case, the statute does undoubtedly, in express terms, 
enact that certain property shall be forfeited and distributed as revenue 
forfeiture. Surely Congress has the power so to enact. That is not a ques- 
tion of international law, jus inter gentes, but of domestic policy and do- 
mestic law, with which the international law has no concern. And it is 
begging the whole question to pretend that the law of prize, enacted by 
Congress, abrogates, extinguishes, and annuls the law of revenue forfeit- 
ure enacted by the same Congress. 

There is one important adjudication, that of Judge Betts, of the south- 
ern district of New York, the case of "The Sarah Starr," in which, 
while commenting on the provisions of the act of July 13, 1861, and de- 
ciding that the case before him was one of prize, yet he concludes that 
"there is no incompatibility in inforcing the forfeiture, through the 
power of the Court under the process of prize, or in proceedings for con- 
demnation on the instance side of the Court, on motion of the district 
attorney in the same suit." — 3£S. Opinion in the case of the brig Sarah 
Starr and cargo, and the schooner Aighurth and cargo. 

In his discussion of these cases, Judge Betts appears to assume that 
the sixth section of the act of July 13, 1861, comprehends cargo as well as 
vessel. 

In the case of "The Amazon," and in other cases from the eastern district 
of Pennsylvania, heretofore acted on by the Treasury Department, it has 
been distinctly maintained by Judge Cadwalader, that seizures, coming 
within the letter of the act of July 13, 1861, even although proceeded 
against as prize, are nevertheless treatable as revenue forfeitures, within 
the jurisdiction of the Secretary of the Treasury. 

Admitting, as ruled by Judge Betts, that a case may come within the 
purview both of the Prize Acts and the Eevenue Acts, and so be proceeded 

i 



19 

against by double process at the same time, on the instance and the prize 
side of the' admiralty court, then it would follow that the district attor- 
ney might sue on the instance side alone, and, at the outset, with as 
much propriety as to sue on the prize side alone. 

In other words, a true determination of the present question cannot 
be precluded by the mere fact of the district attorney having, in his dis- 
cretion, and it may be erroneously, elected to sue on the prize side of the 
Court, instead of the instance side. 

It is no more competent here to say, that the captors in prize have a 
vested right to a distributive share of the proceeds in the cases under 
consideration, by reason of statute promise, than it is to say that the 
revenue officers have a vested right by similar statute promise; for the 
statute engagement of distribution to the revenue officers in the fifth sec- 
tion of the act of May 20, 1860, is just as positive and explicit, as the 
statute engagement to naval captors in the act of April 23, 1800, or that 
of July 17, 1862. 

Which of these acts, if either, is paramount and exclusive, — which, if 
either, is to take and dispose of the property in dispute, — is a question of 
statute construction, and of public law, which, regarding as well the 
amount of money at stake as the momentous character of the legal prin- 
ciples involved, seems to be pre-eminently fit to receive its final determina- 
tion at the hands of the Supreme Court of the United States. 

It is understood that the question arises formally, and awaits decision, 
in the case of "The Gray Jacket," now pending in the Supreme Court. 

In the Circuit Courts of the United States, and, indeed, in the courts 
of the States, when a class of cases, more or less numerous, happens to 
be pending, and one of them shall have been taken up to the highest 
Court for final decision, it is the ordinary practice, and the received 
exercise of judicial discretion, to continue and suspend all the cases of 
the same class, until the test case shall have been finally determined. 

It seems to me that the practice of the courts in this respect furnishes 
a rule of action here, which may well be followed by the Treasury De- 
partment. 

Applicable to the main question there is another class of considerations, 
which, although not involving so. much debate of technical law as the 
issue of conflict between revenue forfeiture and prize forfeiture, yet is 



20 

more important, perhaps, in its influences on the determination of the 
true effect of these acts. 

The acts affect in terms only the property of Americans, whether such 
by nationality or by domicil : Americans personally loyal, it may be, as 
well as Americans disloyal, and Americans inhabiting the loyal States, as 
well as Americans inhabiting the insurgent States. In order to stop the 
commercial intercourse between the two divisions of the Union and their 
respective inhabitants, it was necessary to enact general laws compre- 
hensive in their purview. But, in the execution of such laws, cases are 
prone to occur where technical violation of the statute may be attended 
by mitigating circumstances, or may be altogether innocent in spirit or 
intention, nay, may be absolutely meritorious and praiseworthy. It 
would be in accordance to all the traditions of the Government, and in 
congeniality with received usages of legislation, to provide for the pun- 
ishment of such illegal intercourse by forms of law admitting remission 
or mitigation of penalties and forfeitures. To do this, would not imply 
special or undue regard for inhabitants of the insurgent States: it would 
be dictated still more by tenderness towards inhabitants of the loyal 
States, equally subject to the penal operation of the acts. Such is mani- 
festly the inducement of these acts . In order that they mi^ht not oper- 
ate oppressively, and in order to enable the 'Government to afford relief 
in particular cases deserving it. Congress enacted, not a law of prize, but 
a law of revenue forfeitures, subject to the jurisdiction of the Secretary 
of the Treasury. ' 

Confirmation of this view of the subject is found in that provision of 
these acts, which empowers the Secretary of the Treasury to grant 
licenses or clearances for the intercourse otherwise prohibited, and to 
make general regulations in this behalf Thereupon it would follow con- 
sistently, as the acts in fact provide, that the Secretary should have 
power to mitigate or remit the consequences of things done, or omitted 
to be done, either in violation of or according to the regulations of the 
Department. 

Eevenue forfeiture would accomplish all possible objects of public poHcy 
contemplated by the acts. Prize forfeiture could be no more effective 
towards the attainment of the end sought than revenue forfeiture. 
Prize money to captors, and nothing else, makes difference between the 



21 

two forms of forfeiture. And whether to grant prize money to captors 
or not, and if granting it, then in what cases, is, we repeat, a question of 
pubhc policy not depending on any supposed laws of war, but on the sole 
discretion of the Government. 

Congress might have subjected all these cases to the law of war-prize, 
if it had seen fit so to do ; but it did not ; it chose to subject them to the 
municipal law, apparently for the express purpose of bringing them 
within the scope of remission or mitigation, according to the accustomed 
forms of statute. 

If, by construction of the supposed absorbing qualities of the laws of 
war, these revenue forfeitures are perverted into prize forfeitures, then 
all the wise and beneficent purposes of Congress in this respect are frus- 
trated. For there is no convenient statute routine, if indeed there be 
any statute means, whereby either a loyal inhabitant of the insurgent 
States or a feal inhabitant of the loyal States, can obtain relief in the 
case of the unjust forfeiture of his property as prize of war. To be sure, 
the President may, perhaps, have jurisdiction over the question of prize, 
just as the Crown has in Great Britain ; for the statute or other grant of 
prize to captors in Great Britain is just as effectual in terms of donation 
as it is in -the United States. But, we repeat, no convenient statute 
means for prize remission esist as with revenue forfeitures. 

Whether the construction of prize law shall be allowed to frustrate the 
declared will of Congress in the present matter is a consideration, inde- 
pendently of all the other considerations suggested, which would seem 
to justify suspension of distribution of prize, that is, of administrative 
action adverse to the express terms of these acts, until the question of 
law involved shall have been adjudicated by the Supreme Court. 

These considerations appeal with peculiar force to the Secretary of the 
Treasury. Disobedience to his regulations constitutes the offence which 
these acts punish. The acts, in terms, require him to take complete 
jurisdiction of the subject; to receive the forfeitures into the Treasury; 
to remit or to mitigate in his discretion ; and to distribute a share of for- 
feitures among ofiicers of the Treasury. Shall he repudiate and renounce 
this jurisdiction, which includes, not only his own official duties, but also 
the right of the Treasurj^, which he administers ? And if so, why shall 
he do this ? Is he compelled thus to pretermit the performance of a 



22 

statute duty, merely because some district attorney has, for good or bad 
cause, or noue at all, instituted proceedings on the prize side of the district 
court, instead of the instance side, as required by the letter of statute 
and the express command of the President. Surely such a step, on the 
part of a subordinate officer, does not determine the power or regulate 
the duties of the Secretary of the Treasury. 

Nothing less than a declaratory act of Congress, or a decision of the 
Supreme Court, can suffice to unloose the hand of the Department in this 
behalf, and take from it either power or money committed to it by un- 
equivocal provisions of acts of Congress. 

There is one other act, intermediate between those of July 13, 1861, 
and May 20, 1862, which demands attention. It is the strange one of 
August 6, 1861, entitled "An act to confiscate property used for insurrec- 
tionary purposes." 

Section 1 sets forth the conditions of such illegal uses, involving the 
consequence of liability of the property to confiscation, and then enacts 
that " all such property is hereby declared to be lawful subject of j;;7'~e 
and capture } and it shall be the duty of the President of the United 
States to cause the same to be seized, confiscated, and condemned." 

Section 2 enacts that "such prizes and captures shall be condemned in 
the district or circuit court of the United States having jurisdiction of 
the amount, or in admiralty in any district in which the same may be 
seized, or into which they may be taken and proceedings first instituted." 

Section 3 enacts that "the Attorney General or any district attorney 
of the United States in which said property may at the time he, may in- 
stitute the proceedings of condemnation, and in such case they shall be 
wholly for the benefit of the United States; or any person may file an 
information with such attorney, in which case the proceedings shall be 
for the use of such informer and the United States, in equal parts." 

Section 4 provides for the emancipation of slaves employed by their 
masters in any service against the Government, and is irrelevant to any 
present question. 

This anomalous act, with its inaccurate language, confusion of liabili- 
ties, remedies, and jurisdictions, its omissions as singular as its commis- 
sions, offers a very striking illustration of the embarrassments which 
sometimes occur in the exposition of acts of Congress; 



23 

In the absence of any authoritative judicial commentaries on this act, 
we may possibly determine its legal effect by liberal resort to conjectural 
supplement of its deficiencies, and discretionarj^ redistribution of its un- 
assorted elements. 

"When the act speaks of "'prize and capture," without discrimination of 
place, as whether by sea or land, we are not to suppose it intends to create 
a new law of land-prize, that is, military booty or loot. There is not in 
this act or any other, provision for applying'the rules of prize process and 
distribution to land captures by land forces. Nay, according to a recent 
opinion of the Supreme Court, capture on the land cannot be regarded as 
prize, in any sense. (3Irs. Alexanders Cotton, 2 Wallace, 404.) All such 
captures, except as they may be included within the purview of the acts 
of July 13 1861, and of May 20, 1862, or of other provisions of this act of 
August 6, 1861, belong to the category of the Confiscation Act (July 17, 
1862) or that of the Captured Property Acts (March 12, 1863, and July 2, 
1864.) 

And the general tenor of the Captured Property Acts seems to require 
that all insurgent property captured within the United States shall be 
turned over to the Treasury Department. That is especially required of 
all oflacers and privates of the army, and of all officers, sailors, and ma- 
rines of the navy, as to any property upon the inland waters of the 
United States. — See U. S. Statutes, vol. 12, p. 821. 

To return to the act of August 6, 1861: There may be cases of mari- 
time capture, and so of possible prize, comprehended within the condi- 
tions of forfeiture prescribed by this act. 

The unskilful framers of the act seem to have supposed so ; for the second 
section gives cognizance of cases to "admiralty" in language of contra- 
distinction from the district court, as if these were distinct and separate 
courts. And yet, on the other hand, this fact is inconclusive, because 
jurisdiction in admiralty does not necessarily imply jJi'ize, since revenue 
seizures are equally cognizable in admiralty. . 

Moreover, the third section expressly enacts, that condemnation under 
this act shall be either for the benefit of the United States, or on qui tarn 
information, half to the informer, and half to the United States. With 
reference to which, the second section gives jurisdiction to the circuit and 
district courts as in civil matters, according to the amount in controversy. 



24' 

This provision is of universal terms, and seems to exclude all questions 
of prize (in the sense of prize law) from the purview of the act. 

Note, however, that this act contains no express grant of power to the 
Secretaiy of the Treasury to mitigate or remit forfeiture, nor any clause 
for the distribution of forfeiture or any part of it among officers of the 
Treasury. 

In fine, the act stands by itself, with apparently little, if any, practical 
importance, except as it may have served to support here and there a 
qui tarn information for the forfeiture of some stray piece of insurgent 
property, seized in places where the functions of the courts of the United 
States were going on without interruption. If any property captured on 
the high seas were so conditioned as to come within its purview, the cap- 
tor, nevertheless, probably caused it to be libelled as prize of war, and so 
the relation of it to this act may have passed without notice ; and if any 
such property were captured on land, or upon the inland waters of the 
United States, it is embraced within the provisions of other acts, either 
the two Non-intercourse Acts or the Confiscation or the Captured Prop- 
erty Acts. 

I say the Captured Property Acts, because, whatever question might 
exist as to the validity of the first of the acts, by reason of its having 
been approved after the expiration of the Congress, (March 12, 1863;) as to 
which there certainly may be question, (^dishing, Lex Pari iame^it aria, j). 
920, s. 2378 ;) still that act is saved by the force of the subsequent act 
(July 21, 1864) on the same subject. 

Hence, upon examination of all the cases pending, it may not appear 
that any exist, which present the same conflict of law and right, between 
the act of August 6, 1861, and the Prize Acts, as that between these and 
and the Non-intercourse Acts. If any such cases of conflict do exist, then 
the reasons for suspension of distribution are similar to those which apply 
to the cases of conflict under the Non-intercourse Acts. 

All the conflict attaches to the condition of American property, and 
such only, that is, American by citizenship, or American by commercial 
domicil, whether in the loyal or the insurgent States. It does not apply 
to foreign property captured jwre belli, as belonging to persons not subject 
to the municipal jurisdiction of the United States. 

To resume : If you determine to act on the hypothesis of discriminative 



25 

suspension in order to await decision of the Supreme Court, then the 
first thing to do will be to classify the pending cases, according to the 
several categories into which they respectively fall. 

The cases, on which distribution might be suspended, are all such as 
are comprehended within the letter of the acts of July 13, 1861, and May 
20, 1862, and of that of August 6, 1861, as they are severally explained 
in the foregoing observations. It would comprehend only Americans by 
nationality or domicil, and their property, whether a vehicle and its con- 
tents, or other property in transitu, by land or water, contrary to the 
non-intercourse provisions of these acts, or a ship (and her cargo) found 
in a port of the United States, or at sea under certain circumstances, 
or the specific property employed in aid of the rebellion. 

Such suspension would not cover prize money due on foreign property 
captured for breach of blockade or other cause appertaining to the jus 
belli, and so condemnable as prize; nor property of Americans proceeded 
against under the Confiscation Acts; nor such property held in virtue of 
the two Abandoned Property Acts. 

The next thing to do would be to establish regulations and forms of 
examination on notice, for cases as to which the Secretary of the Treas- 
ury intends to assume to remit in his discretion, as he lawfully may, with- 
out waiting for the certificate of a district judge. And, as the power of 
regulation, conferred on the Department by these Non-intercourse Acts, 
is ample in other respects, it might, perhaps, be well to make provision 
as to the institution of proceedings in these cases on the instance side of 
the admiralty courts, and as to needful appeals to the Supreme Court. 

I have the honor, in conclusion, to state, as the legitimate result of the 
foregoing reflections, that — 

Inasmuch as by the express terms of the acts of July 13, 1861, May 
20, 1862, and August 6, 1861, and of the proclamation of the President 
of August 16, 1861, the Secretary of the Treasury is charged specially 
with the execution of these acts; 

And inasmuch as the forfeitures pronounced by these acts are in and 
by the same expressly declared to accrue to the Treasury, with power of 
remission or mitigation in certain cases ; 

And inasmuch as these acts still remain unrepealed, and of full force, 
except in so far as they may have been modified by the acts of March 12, 



20 

1863, and July 21, 1864, which also give exclusive jurisdiction to the 
Treasury Department ; 

Therefore, if any condemnations in prize have taken place, attaching 
to property and cases coming within the apparent purview of these acts, 
it is my opinion that, in the mere and plain discharge of his administra- 
tive duties, and in the judicious exercise of a sound and wise discretion, 
the Secretary of the Treasury may well and lawfully suspend the distri- 
bution of the proceeds of all such condemnations, until whatever there • 
be of questionable, if any thing, in the true construction of the acts, 
shall have been definitively determined, in a proper case or cases before 
it, by the Supreme Court of the United States. 

I am, very respectfully. 

Your obedient servant, 

C. Gushing. 
The Hon. Hugh McCulloch. 

Secretary of the Treasury. 



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